[2021] KEELC 120 (KLR)
The court found that the application for stay of execution was prosecuted with unreasonable delay, as it was urged more than two and a half years after filing, contrary to Order 42 Rule 6(2)(a) of the Civil Procedure Rules. Additionally, the court noted that a similar application was pending before the Court of...
Source-derived case information.
- Citation
- [2021] KEELC 120 (KLR)
- Parties
- Plaintiff: Mailua Estates Limited; Defendant: Pushan Miato; Defendant: Seleyian Miato; Defendant: Ketukei Miato; Defendant: Reuben Ole Nakuo; Defendant: County Land Registrar, Kajiado County; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 504 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru
- Legal Topics
- Stay of Execution, Appeal Process, Security for Costs, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mailua Estates Limited
Plaintiff
Pushan Miato
Defendant
Seleyian Miato
Defendant
Ketukei Miato
Defendant
Reuben Ole Nakuo
Defendant
County Land Registrar, Kajiado County
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal was filed without unreasonable delay.
- 2 Whether the Environment and Land Court has jurisdiction to grant a further stay when a similar application is pending before the Court of Appeal.
- 3 Whether the applicant should have disclosed the outcome of the similar application at the Court of Appeal to avoid conflicting orders.
Ratio Decidendi
The court found that the application for stay of execution was prosecuted with unreasonable delay, as it was urged more than two and a half years after filing, contrary to Order 42 Rule 6(2)(a) of the Civil Procedure Rules. Additionally, the court noted that a similar application was pending before the Court of Appeal, and the plaintiff failed to disclose the outcome of that application, risking conflicting orders between courts. The court emphasized the importance of avoiding parallel proceedings and conflicting decisions, and held that the Environment and Land Court lacked jurisdiction to grant a further stay while the matter was before the Court of Appeal. Consequently, the application...
Court Disposition
application dismissed with costs
Orders
- The application dated 28th March, 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KAJIADO
ELC CASE NO. 504 OF 2017
MAILUA ESTATES LIMITED…………………………………...………………….PLAINTIFF
-VERSUS-
PUSHAN MIATO……………………………………………………………....1ST DEFENDANT
SELEYIAN MIATO…………………………………………………...………2ND DEFENDANT
KETUKEI MIATO…………………………………………………………..…3RD DEFENDANT
REUBEN OLE NAKUO…………………………………………………….....4TH DEFENDANT
COUNTY LAND REGISTRAR, KAJIADO COUNTY…………………….5TH DEFENDANT
THE HON. ATTORNEY GENERAL……………………………...………..6TH DEFENDANT
RULING
This ruling is on the Notice of Motion dated 28th March, 2019,
The motion is brought under Order 42 Rule 6(1) and (4)of theCivil Procedure Rulesand it seeks a stay of execution pending the hearing and determination of an intended Appeal.
The grounds are that the Plaintiff was dissatisfied with the Judgement delivered on 26th February, 2019 and Intended to Appeal and execution would render the Appeal nugatory.
It is also the Plaintiffs’ ground that the Intended Appeal has high chances of success and the Respondents will not suffer any prejudice.
The application is supported by an affidavit sworn by the Plaintiffs’ Counsel which reiterates the grounds above.
Annexed to the affidavit are the following;
(1) Notice of Appeal which is dated 11th March, 2019.
(2) A letter to the Deputy Registrar dated 28/3/2019 forwarding copies of Decree for Certification.
(3) Affidavit of service dated 28/3/2019.
(4) Decree dated 26/2/2019.
The Application by the Plaintiff is opposed by the third Defendant Ketukei Miato who has sworn a replying affidavit dated 30/7/2019.
In the affidavit, the third Defendant says that the execution process has not begun, the appellant has filed a similar application at the Court of Appeal and that the Appellant should be compelled to deposit security for costs.
Annexed to the affidavit is a notice of motion filed in the Court of Appeal under Rule 5(2) (b)of the Court of Appeal Rules 2010 dated 14/6/2019 and a supporting affidavit by Stephen Waigwa Murage of the same date.
In written submissions dated 15th March, 2020, the Defendants Counsel urges that the application is an abuse of Court process because of the similar application filed at the Court of Appeal and also because of absence of jurisdiction by this Court to order a further stay of execution.
I have carefully considered the entire application including the affidavits, annexures and written submissions.
I find that the application dated 28th March, 2019 has no merit for the following reasons;
Firstly, I find that the application has been urged more than 2 1/2 years after it was filed. Under Order 42 Rule 6(2) (a)there is unreasonable delay in prosecuting this application.
Secondly, the outcome of a similar application made to the Court of Appeal is unknown. The Plaintiff should have revealed to this Court the verdict of Court of Appeal so that we do not issue an order that conflicts with that of a Higher Court.
For the above reasons, the application dated 28th March, 2019 is dismissed with costs.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF DECEMBER, 2021.
M.N. GICHERU
JUDGE